Gibson, R (on the application of) v Chief Inspector Carroll & Anor [2005] EWHC 1282 (Admin)

Case No CO/5653/04[2005] EWHC 1282 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 15th February 2005
Strand
London WC2
B E F O R E:
MR JUSTICE MOSES
MR JUSTICE STANLEY BURNTON
Between
THE QUEEN ON THE APPLICATION OF STUART GIBSONClaimant-v-
Between
CHIEF INSPECTOR CARROLL AND HUMBERSIDE PROBATION SERVICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J SAMPSON (instructed by Messrs Copeman Markham, Hull, East Yorkshire) appeared for Claimant.MR D O'MALONY (instructed by the Crown Prosecution Service) appeared for Defendant.
J U D G M E N T
[1]MR JUSTICE MOSES: This is an appeal by way of case stated. The case stated is annexed to my judgment. The case raises the issue as to whether a community punishment order can be combined with a community punishment and rehabilitation order.[2]The case stated shows that on 30th July 2004 the justices for the Commission Area of Humberside, acting in and for the Petty Sessions area of Beverley and the Wolds, imposed a community punishment and rehabilitation order on this appellant for an offence of unlawful sexual intercourse, requiring him to complete 100 hours of community punishment and two years of community rehabilitation, with a condition that he attend the sex offenders treatment programme. On the same occasion they ordered to run consecutively to that community punishment and rehabilitation order, a separate community punishment order requiring the appellant to complete 80 hours community punishment for the offence of disqualified driving.[3]The issue then arises as to whether by this means it was open to the justices to make an order that he undergo a community punishment order running longer than the period of community punishment that would be permitted if the order of community punishment and rehabilitation had stood on its own.[4]In order to determine this issue it is necessary to identify the relevant statutory provisions. By section 35(1) of the Powers of Criminal Sentences (Sentencing Act) 2000:
"A court shall not pass a community sentence on an offender unless it is of the opinion that the offence or the combination of the offence and one or more offences associated with it was serious enough to warrant such a sentence. (2) In consequence of the provision made by section 51 below with respect to community punishment and rehabilitation orders, a community sentence shall not consist of or include both a community rehabilitation order and a community punishment order."
Section 41(1) of the 2000 Act deals with community rehabilitation orders. By subsection (1):
"Where a person aged 16 or over is convicted of an offence and the court by or before which he is convicted is of the opinion that his supervision is desirable in the interests of - (a) securing his rehabilitation, or (b) protecting the public from harm from him or preventing the commission by him of further offences the court may (subject to sections 34 to 36 above) make an order requiring him to be under supervision for a period specified in the order of not less than six months nor more than three years."
By subsection (2):
"An order under subsection (1) above is in this Act referred to as a community rehabilitation order."
Section 46 deals with community punishment orders. Subsection (1) reads:
"Where a person aged 16 or over is convicted of an offence punishable with imprisonment, the court by or before which he is convicted may (subject to sections 34 to 36 above) make an order requiring him to perform unpaid work in accordance with section 47 below. (2) An order under subsection (1) above is in this Act referred to as a community punishment order."
Section 51 concerns community punishment and rehabilitation orders. Subsection 1 reads:
"Where a person aged 16 or over is convicted of an offence punishable with imprisonment and the court by or before which he is convicted is of the opinion mentioned in subsection (3) below, the court may (subject to sections 34 to 36 above) make an order requiring him both - (a) to be under supervision for a period specified in the order, being not less than twelve months nor more than three years; and (b) to perform unpaid work for a number of hours so specified, being in the aggregate not less than 40 nor more than 100."
Subsection (2) reads:
"An order under subsection (1) above is in this Act referred to as a community punishment and rehabilitation order."
The justices took the view, as is apparent from the case stated, that, absent any specific prohibition within section 35, it was open to them to make a community punishment order consecutive to a community punishment and rehabilitation order. I do not agree. It is plain that the prohibition to which section 35 relates is identified by reference to two specific orders, community rehabilitation orders and community punishment orders. Section 51, however, imposes a limit upon the period for community punishment and for rehabilitation within a community punishment and rehabilitation order by reference to that which the court requires a convicted person to do, namely requiring him to be under supervision for a period and requiring him to perform unpaid work. Where both those requirements are imposed the order is described as a community punishment and rehabilitation order, and the limits identified in subsection (1) come into force.[5]On the occasion when this appellant was punished on 30th July 2004 the court did require him to be under supervision and did require him to perform unpaid work. The fact that they did so in the form of two consecutive orders is neither here nor there. Their requirements clearly fell within section 51(1) and therefore the order they made was a community punishment and rehabilitation order. In those circumstances, to require him to perform unpaid work for more than 100 hours breached the limitation imposed in section 51(1) and was unlawful.[6]It is not surprising that this limitation is imposed, since it is plain that Parliament took the view that where a convicted person was to be under supervision, as well as to be required to perform unpaid work, it was important, so as not to damage the effect of the supervision, to burden him excessively with the requirement to perform unpaid work. So much is clear from the decision of this court in relation to different statutory provisions in the case of Gilding v Director of Public Prosecutions CO/816/98 . In those circumstances, it seems to me that the justices were misled by the specific prohibition in section 35(2). The prohibition on what they sought to do was contained in section 51. As section 35(2) makes clear, that provision is merely enacted in order to reinforce the provisions of section 51. In those circumstances, for my part, I would allow this appeal and answer the question that the justices pose at paragraph 9 of the case stated, no.

MR JUSTICE STANLEY BURNTON I agree.

[8]MR JUSTICE MOSES: As far as the disposal of the matter is concerned, I take the view -- I think that Stanley Burnton J agrees -- that we ought to remit it to the justices. This was an offence of driving whilst disqualified. Whether they might have done something in relation to, for example, any financial penalty or in relation to disqualification seems to me a matter for them. It is dangerous for us to merely quash it without more. After all, this was a separate and distinct offence. We are minded to send it back.[9]MR SAMPSON: So be it.

MR JUSTICE MOSES: Do take instructions.

[11]MR SAMPSON: I do not think that he was disqualified. MR JUSTICE MOSES: Perhaps it ought to be remitted rather than take it any further.